Tom Ginsburg on How Countries Can Curb Abuse of Government Power During States of Emergency

States of Emergencies: Part II

In our earlier post, we described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have relied on existing legislation relating to communicable diseases, health, and/or national disasters and used these laws as the basis for their COVID-19 response. Third, some countries have (also) passed brand new legislation that grant the governments new powers to respond to COVID-19.

When governments are granted powers to restrict rights, there is always a risk of abuse. To minimize these risks, three broad principles are important: (1) providing for legislative and judicial oversight of the executive, (2) limiting exceptional measures to those strictly necessary, and (3) ensuring that such powers endure only for the duration of the outbreak.  These principles, rather than those focused on whether the relevant authorities are constitutional or statutory, are the most essential in ensuring that liberal constitutionalism does not become a casualty of the virus. The different models, however, each have their own vulnerabilities when it comes to the risk of abuse. Each government’s invocation of legal authority, whatever form it takes, should therefore be carefully scrutinized for compliance with these principles. 

Read more at Harvard Law Review Blog